Per Hon’ble Mr.P.N.Kashalkar, Presiding Judicial Member
This is an appeal filed by the original complainant whose complaint was dismissed by the Additional District Consumer Disputes Redressal Forum, Mumbai Suburban by its order dated 12/08/2011 passed in consumer complaint no.580/2005. Case of the complainant in nutshell was that the complainant company had purchased the car and it has been handed over to its Managing Director, who was required to go often to Silvasa where complainant company is having business of builder and developer. They had purchased the car from opponent no.3-M/s.Linkway Honda at the company’s address at Silvasa. Opponent no.2-M/s.Ichibaan Honda, which is authorized garage of Honda Siel India Ltd. and opponent no.1 is the manufacturer of Honda City car. According to complainant on 26/07/2005 because of unprecedented rains and flood the car of the complainant company got damaged and they had approached opponent no.2- M/s.Ichibaan Honda and requested them to repair the car. They were told that there were many cars damaged in the flood and they directed that complainant company should bring the car to them on 11/08/2005. Accordingly, on 11/08/2005 said car was taken to opponent no.2 for repairs by towing it. Opponent no.2 assured that necessary repairs would be carried out and on or about 07/09/2005 car would be given back after repairs. However, according to complainant company for repairs lot of time was consumed, right upto 21/09/2005 no repairs were done. On 21/11/2005 Engineer of opponent no.2 informed on phone that car was repaired and somebody should be sent for trial. Managing Director of the company sent his driver Mr.Ajay Sharma & Uncle Mr.Das to take the trial by going to opponent no.2. However, they were told that when opponent no.2 had taken trial from their Engineer, while taking the trial the car engine was damaged and it could not be repaired at all. So car was damaged on total loss basis. Complainant company was also told that computerized chip of the car had been damaged and, therefore, car could not be repaired at all. They assured that in place of damaged engine they would replace the engine of some old car and would repair the same. Thereafter complainant company sent notice to both opponent nos.1 & 2 and informed them that under the circumstances they were not prepared to take possession of the car. Opponent no.1 sent reply and informed the complainant company that if the complainant company was prepared to give old car, they would give new car and deduct `25,000/- from the price of the car, but this was not acceptable to the complainant company. According to complainant there was deficiency in service on the part of opponent no.2. It was the duty of opponent nos.1 & 2 to provide spare parts. But since spare parts were not available, their car could not be repaired. According to complainant company, they had assured to repair the car on or before 05/09/2005 but they delayed in repairing the car and, ultimately, told that car could not be repaired at all. The complainant company pleaded that in February 2002, the new car could be provided for `5,50,000/- and if complainant company was ready to pay `5,25,000/- and give back his old car, which was not acceptable to the complainant and, therefore, complainant company filed consumer complaint claiming new car from opponent nos.1&2 or refund of `5,50,000/- to them. They also claimed `1,00,000/- for mental harassment caused to their Managing Director and also claimed `25,000/- as costs of the proceeding.
Opponent no.1 filed written version and denied the allegations made by the complainant company. According to opponent no.1, complainant company was having building construction business at Silvasa and they were having local office at Silvasa. They had purchased the car for business purpose at Silvasa and, therefore, complainant company could not be held to be a ‘consumer’ within the meaning of section 2(1)(d) of Consumer Protection Act, 1986. They also took up the plea that complainant company was not having business at Mumbai, so complainant company could not file the consumer complaint u/sec.11 of Consumer Protection Act, 1986 and, moreover, they had not sought previous permission of District Consumer Disputes Redressal Forum to file consumer complaint against opponent no.1. They also denied that opponent no.2 was authorized agent of opponent no.1. According to opponent no.1 their relations with opponent no.2 was on principal to principal basis. They pleaded that opponent no.2 was having so many cars after unprecedented flood of July 2005 and, therefore, it was not possible for opponent no.2 to immediately repair the car belonging to the complainant. According to opponent no.1 when car was given to opponent no.1 by the complainant company, its engine was already damaged, its computerized chip was spoiled. It denied that the engine of the car was damaged or that there was defect developed in the computerized chip, when they were taking trial run at opponent no.2 workshop. According to opponent no.1 on 17/01/2006 car was repaired and could be given in possession of the complainant but complainant company avoided to take possession of the car since they wanted to take new car under one or other pretext.
Opponent no.2 denied the allegations made by the complainant company and pleaded that the complainant company had purchased the car for its business purpose and commercial use and, therefore, company cannot file consumer complaint. They pleaded that on 17/01/2006 car was ready after repairs. Complainant company was told to take back the car on phone. Then on 21/01/2006 by sending letter complainant company was requested to take possession of the car but complainant company avoided to take possession of the car and, ultimately, filed consumer complaint on 30/12/2005 and informed them by letter dated 27/01/2006 that they had filed consumer complaint.
The District Forum on considering affidavits and documents placed on record, held that there was no deficiency in service on the part of opponent nos.1, 2 & 3. They had not resorted to any unfair trade practice. Complainant company wanted to avoid to make payment of repaired car and that is why they had not taken back possession of the car after it was repaired and raised dispute and avoided to take possession of the car on one or other pretext. Forum found that there was no substance in the complaint and, therefore, it was pleased to dismiss the complaint. Aggrieved by this original complainant has filed this appeal.
We heard submissions of Ms.Sukruta Chimalkar-Advocate h/f.Mr.S.B.Prabhawalkar-Advocate for the appellant and Advocate Anil Kumar Singh for respondent no.1. Respondent no.2 has already been proceeded ex-parte. Respondent no.3 has been deleted on the statement made by counsel for the appellant.
We are finding that though the complaint is dismissed on merits by the District Consumer Disputes Redressal Forum and though that order is appearing to be very sound, we are of the view that complaint should have been dismissed on the ground that the complainant company cannot be a consumer within the meaning of section 2(1)(d) of Consumer Protection Act, 1986. Complainant company had purchased the car for its commercial purpose. It is in the business construction of housing. It is having the business at Silvasa and complainant company purchased the car and entrusted it to its Managing Director, who has used the car for coming from Bombay to Silvasa for business purpose. When complainant company purchased the car for its business purpose, it cannot be permitted to file consumer complaint styling itself as consumer within the meaning of section 2(1)(d) of Consumer Protection Act, 1986. If the Managing Director of the complainant company had personally paid the price of the car, the matter would have been different, but here is the company which is incorporated under Companies Act had purchased the car and company’s business was commercial business of housing construction and, therefore, car which was purchased by the complainant company for commercial purpose for being used by its Managing Director and, therefore, consumer complaint filed by the complainant company before the District Consumer Disputes Redressal Forum was not tenable in law. Surely the said complaint was liable to be dismissed under newly amended provisions of section 2(1)(d), which excludes the purchases made by company having commercial activities. In the circumstances, on this ground alone, appeal is liable to be dismissed, besides the reasons rightly given by the District Consumer Disputes Redressal Forum while dismissing the complaint. In the circumstances, we pass the following order:-
ORDER
Appeal stands dismissed.
Impugned order passed by the District Consumer Disputes Redressal Forum is confirmed.
Inform the parties accordingly.
Pronounced on 20th April, 2012.
